Thursday, February 24, 2011

Fifth Amendment

Temecula Constitution Class with Douglas V. Gibbs; Thursday, February 24, 2011

Amendment V

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Key Terms:

Capital Crime: One for the punishment of which death is inflicted, which punishment is called capital punishment.

Double Jeopardy: The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted.

Due Process: The essential elements of due process of law are notice, an opportunity to be heard, the right to defend in an orderly proceed, and an impartial judge. It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgement is rendered. In short, due process means fundamental fairness and substantial justice.

Grand Jury: A group of citizens convened in a criminal case to consider the prosecutor's evidence and determine whether probable cause exists to prosecute a suspect for a felony. At common law, a group of persons consisting of not less than twelve nor more than twenty-four who listen to evidence and determine whether or not they should charge the accused with the commission of a crime by returning an indictment. The number of members on a grand jury varies in different states.

Infamous Crime: A crime which works infamy in the person who commits it. Infamous crimes tend to be classified as treason, felonies (offenses of graver character than misdemeanors, especially those commonly punished in the U.S. by imprisonment for more than a year - Felonies include Capital Crimes as well), and any crime involving the element of deceit.

Miranda Rights: Your "Miranda Rights" are named after the U.S. Supreme Court case, Miranda v. Arizona, 384 US 436 (1966). Miranda Rights are a warning given advising the accused of their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation. From the Fifth Amendment: ". . .nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." Miranda Rights exist to secure the Fifth Amendment's privilege against self-incrimination, and to make the individual in custody aware not only of the privilege, but also of the consequences of forgoing it. The judicial opinion from The Miranda v. Arizona case also indicated that in order to protect the person's life, liberty or property with the due process of law, the individual must have the right to an attorney. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial.


The Fifth Amendment attests to the Founding Father's understanding that his is a nation of property owners. As a republic of property owners, when in jeopardy of legal trouble, our rights and properties must be safeguarded.

The Fifth Amendment brings to the U.S. Constitution Thomas Jefferson’s words in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”

Following the tradition of John Locke, Thomas Jefferson and James Madison believed that men could be free only if their lives, liberty, and property were protected by the rule of law.

Having a sense of independence, individuals must be protected, then, from the tyrannical trappings of a governmental system that may try to use the judiciary against them (as the King of England had done often). The protective mechanism, or "the rule of law," would be the U.S. Constitution and clauses like the Fifth Amendment which were designed to provide protection to the populace from unfair legal practices.

The words of the Founders continues to resonate today as the majority of the American people seem to firmly agree with the Founders’ insistence that no one should be deprived of life, liberty, or property without due process of law. We can take satisfaction that most of our fellow citizens in our republic still hold these truths to be self-evident.


Special Thanks to: Faith Armory, 27498 Enterprise Cir. W #2, Temecula, CA 92562; 951-699-7500, - For providing us with a classroom to meet in.

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